09-005002 Department Of Children And Family Services vs. Traceann Handy Family Day Care Home And Traceann Handy Status: Closed Recommended Order on Wednesday, January 13, 2010.

Summary: Petitioner met its burden of proof to show existence of violation, but the amount of the penalty is mitigated by circumstances.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 09-5002

)

TRACEANN HANDY FAMILY DAY CARE HOME AND TRACEANN HANDY, )

)

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on October 27 and December 10, 2009, in Ft. Myers, Florida,

before Administrative Law Judge R. Bruce McKibben of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Eugenie G. Rehak, Esquire

Department of Children and

Family Services

Post Office Box 60085

Fort Myers, Florida 33901

For Respondents: Traceann Handy, pro se

Traceann Handy Family Daycare Home

4423 32nd Avenue Southwest

Naples, Florida 34116

STATEMENT OF THE ISSUE

The issue in this case is whether Respondents violated

provisions of Chapter 402, Florida Statutes, 1 and Florida

Administrative Code Chapter 65C-20, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Children and Family Services

(hereinafter the "Department"), filed an Administrative

Complaint on July 29, 2009. The Administrative Complaint

alleged violations of regulations governing the operation of

family day care homes and imposed an administrative fine of one

thousand dollars ($1,000.00). Respondents, Traceann Handy and

Traceann Handy Family Day Care Home (hereinafter jointly

referred to as "Respondent"), filed a response to the

Administrative Complaint which was accepted by the Department as

a Petition for Formal Administrative Hearing. The

Administrative Complaint and response were forwarded to the

Division of Administrative Hearings ("DOAH") and assigned to the

undersigned Administrative Law Judge. Pursuant to notice, a

final hearing was commenced on October 27, 2009, in Fort Myers,

Florida. Due to issues concerning Respondent's schedule, the

hearing was adjourned prior to its completion and then

rescheduled for completion on December 10, 2009. The final

hearing was concluded on that date.

At the final hearing, Respondent represented herself and

called the following witnesses: Shawn Burger, Respondent's

husband; and Traceann Handy, Respondent. No exhibits were

accepted into evidence from Respondent.

The Department called six witnesses: Bonny Wolbach, child

care licensing counselor; James Palmer, child care licensing

section; Dayna Provost, child protection investigator; Bruce

Alexander, criminal background screening section; Donnette

Anderson, certified child protection investigator; and Alice

Parrish, child care licensing supervisor. Alice Parrish was

called again for rebuttal. The Department offered Exhibits 1

through 14, all of which were admitted.

The undersigned was advised that no transcript would be

ordered. The parties agreed to file their proposed findings of

fact and conclusions of law by December 21, 2009. Respondent

timely submitted a Proposed Recommended Order; the Department's

Proposed Recommended Order was received on December 30, 2009. 2

Each was duly considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Respondent Traceann Handy owns and operates Traceann

Handy Family Day Care Home, a child care facility licensed by

the Department. On May 26, 2009, the facility had been

inspected by the Department and found to be in compliance with

the rules of operation. Due to some missing documentation

(CPR and first aid certificates), the facility was issued a

Provisional License. As of the date the final hearing in this

matter was concluded, the documentation had been submitted, and

the facility had a valid license to operate. 3

2. The Department is responsible for inspecting,

licensing, and monitoring child care facilities such as the one

operated by Handy. It is the Department's responsibility to

ensure that all such facilities are safe and secure for the

protection of children utilizing the facility.

3. On Friday, June 5, 2009, the Department received a

complaint concerning Handy's facility. The complaint alleged

that two older children were asked to supervise a younger child

without adult supervision and that transportation of the

children had been provided without prior authorization. Based

upon these complaints and in accordance with its rules, the

Department commenced an investigation of the facility.

4. Investigator Anderson (who was on call for the weekend)

went to the facility the next day, Saturday, June 6, 2009. She

knocked on the front door (although the entrance to the child

care facility portion of the home was located on the side of the

house). No one answered her knock, but a young man later came

out of the house and advised Anderson that the facility was

closed and that Handy was not home. 4 Anderson called the

investigator assigned to the case (Dayna Prevost) to report her

findings. While Anderson was making the telephone call, the

same young man came out to her car, banged on the car window and

loudly repeated that Handy was not home. Anderson smelled an

odor which she believed was marijuana while talking with the

young man. (The young man was later identified as Handy's adult

son, Trauquece Handy.) Anderson then left the premises.

5. The investigation was recommenced on Monday, June 8,

2009. On that date, Investigators Wolbach and Prevost went to

the Handy home and knocked on the side door of the home. When

there was no answer to the knock, the investigators went to the

front door and knocked. Again there was no answer, but they

could hear what sounded like children inside the house. The

investigators called Handy (who was not at home) and were told

by Handy that she would have someone inside the house open the

door.

6. Despite the phone call and promise from Handy, no one

opened the door, so the investigators called the police for

assistance. When the police arrived, a man opened the front

door, but the investigators were granted only limited access to

the house. An adult female was seen inside the house, along

with two small children. The female was questioned and said

that she was a housekeeper and that the children inside the home

at that time were her children. Upon receiving that

information, the investigators again left the premises.

7. On the next day, Tuesday, June 9, 2009, a team of

investigators went back to the facility. This time Handy was

present, and the team was allowed into the house. Handy's

husband was also present at that time. While the team was

inspecting the facility, Handy's son came into the house and

went directly upstairs.

8. The team reviewed Handy's records concerning attendance

at the facility by various children. Handy was interviewed, and

due to the previous suspicion of marijuana usage at the home,

asked to provide a urine specimen for the purpose of conducting

a drug screening test. (There was considerable discussion at

final hearing as to how the urine specimen was taken, but that

is not an issue in the present proceeding and will not be

discussed further.)

9. At one point during the investigative review at the

home, a team member approached the inside stairwell and pushed

open the gate located at the bottom of the stairs. The gate had

been placed there by Handy in response to prior concerns by the

Department about children having access to the upstairs portion

of the house. The gate was apparently unlatched, although there

were no children present at that time near the stairwell.

(There was one child present in the home, but that child was in

another part of the house.) As the investigator started up the

stairs, Handy's husband said that Handy would likely not

appreciate them going into her private quarters. As the

investigator continued up the stairs, Handy came into the room

and voiced her opposition to anyone going upstairs.

10. Handy had been previously advised by the Department

that if a gate was in place to keep children from going

upstairs, it would be unnecessary for the Department to inspect

that area during every regular inspection. It is unclear from

the testimony whether Handy misunderstood the Department or

whether the Department was only talking about its annual

licensure inspection. No matter, Handy told the investigator

that she did not want the investigator to go upstairs. The

investigator took that remark as a direct order that she not go

upstairs, so she did not do so.

11. Instead, the Department sought injunctive relief in

Circuit Court to gain access to the upstairs portion of the

house. A hearing on the Department's motion was held the next

day, Wednesday, June 10, 2009. Handy received notice of the

hearing less than an hour before the hearing was scheduled to

commence. She called the Circuit Court Judge's assistant to

seek a continuance, but was told that the hearing must proceed.

The court gave Handy the option of appearing via telephone, if

she so desired.

12. Handy wanted to attend the hearing in person, so she

went to the courthouse. There was one child at the day care

facility at that time. Handy could not find her approved

substitute on such short notice, so she called the child's

parent (who was Handy's cousin) and asked if it would be okay

for Handy's husband to watch the child while Handy attended the

hearing. The parent approved that arrangement.

13. The Circuit Court entered an Order requiring Handy to

allow the Department "a one[-]time inspection . . . of the

private part of [the] home." Based upon that Order, the

Department sent a team of investigators back to the facility on

June 10, 2009, to complete its inspection.

14. Upon completion of its investigation, the Department

issued the Administrative Complaint relevant to this proceeding.

The Administrative Complaint addresses two alleged violations by

Handy: First, that Handy refused to allow the Department access

to the entire home during the inspection. Second, that Handy

allowed a person who was not currently screened to supervise a

child in her care. An administrative fine of five hundred

dollars ($500.00) was proposed for each of the two violations. 5

15. Handy does not believe she instructed the investigator

not to go upstairs during the June 9, 2009, inspection. She

remembers only telling them she did not want them to go

upstairs, that it was unnecessary, and that her understanding

from prior discussions was that the upstairs would not be

inspected. The investigator believes she was specifically and

forcefully told not to go up the stairs. In either case, it is

clear a court order was obtained to gain access. (At the

hearing in Circuit Court, Handy had reiterated that she did not

want the investigators to go upstairs.)

16. The gate in question was put in place to prevent

children from having access to the upstairs portion of the

house. However, the gate was either broken or unlatched (the

testimony on this issue is not clear) when there was a child

present in the house.

17. Handy's husband did not have a valid background

screening in place on June 10, 2009, that would allow him to act

as a provider of child care services in the facility. He had

been previously screened, but had not had his background

screening updated when it expired in June 2008. He had not been

re-screened because he and Handy were separated, and he did not

intend to be at her house to supervise children any longer. The

two are still married, but he only visits the house to do

maintenance and repairs as needed.

18. It is clear that Handy's husband was watching the

child only due to the exigent circumstances surrounding the

court hearing and the unavailability of Handy's approved

substitute. Further, the child's parent was made aware of the

fact and had acquiesced to this arrangement. Nonetheless,

Handy's husband was not technically qualified to watch children

attending the child care center at that time.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2009).

20. Where the Department makes allegations that the

applicant engaged in wrongdoing, the burden is on the Department

to prove wrongdoing. Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932, 934 (Fla. 1996). Factual

findings based on record evidence must be made indicating how

the conduct alleged violates the statutes or rules or otherwise

justifies the proposed sanctions. Mayes v. Department of

Children and Family Services , 801 So. 2d 980, 982 (Fla. 1st DCA

2001).

21. The standard of proof in this case is clear and

convincing evidence, because the Department is seeking to

discipline the license of Respondent. Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

22. Clear and convincing evidence has been described as

follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

The Department met its burden of proof in this matter by clear

and convincing evidence. It is clear that the Department was

denied access to all portions of the house where the child day

care facility was located. The Department's testimony as to

what transpired in the stairwell is most credible. It is

further true that Handy's husband did not have the requisite

background screening in place at the time he watched the minor

child.

23. Section 402.305, Florida Statutes, states in pertinent

part:

(2) PERSONNEL.--Minimum standards for

child care personnel shall include minimum

requirements as to:

(a) Good moral character based upon

screening. This screening shall be

conducted as provided in chapter 435, using

the level 2 standards for screening set

forth in that chapter.

* * *

(5) PHYSICAL FACILITIES.--Minimum

standards shall include requirements for

building conditions, indoor play space,

outdoor play space, napping space, bathroom

facilities, food preparation facilities,

outdoor equipment, and indoor equipment.

Because of the nature and duration of

drop-in child care, outdoor play space and

outdoor equipment shall not be required for

licensure; however, if such play space and

equipment are provided, then the minimum

standards shall apply to drop-in child care.

With respect to minimum standards for

physical facilities of a child care program

for school-age children which is operated in

a public school facility, the department

shall adopt the State Uniform Building Code

for Public Educational Facilities

Construction as the minimum standards,

regardless of the operator of the program.

The Legislature intends that if a child care

program for school-age children is operated

in a public school, the program need not

conform to standards for physical facilities

other than the standards adopted by the

Commissioner of Education.

* * *

(16) EVENING AND WEEKEND CHILD CARE.--

Minimum standards shall be developed by the

department to provide for reasonable,

affordable, and safe evening and weekend

child care. Each facility offering evening

or weekend child care must meet these

minimum standards, regardless of the origin

or source of the fees used to operate the

facility or the type of children served by

the facility. The department may modify by

rule the licensing standards contained in

this section to accommodate evening child

care. . . .

24. Florida Administrative Code Rule 65C-20.008(4) states

in pertinent part:

A screening conducted under this rule is

valid for five (5) years, at which time a

five (5) year re-screen must be conducted.

(a) The five (5) year re-screen is

required for the operator/applicant and all

other household members, including juveniles

and substitutes, and must be maintained in

the department's licensing file.

(b) The five (5) year re-screen must

include, at a minimum, statewide criminal

records checks through the Florida

Department of Law Enforcement and a local

criminal records check.

(c) An operator/applicant must be re-

screened following a break in operation of

the family day care home that exceeds 90

days. A person in this category must

undergo the same level of screening that was

required at the time of initial operation of

the family day care home. If

operator/applicant takes a leave of absence,

such as maternity leave, extended sick

leave, etc., re-screening is not required

unless the five (5) year re-screen has come

due during the leave of absence.

25. Florida Administrative Code Rule 65C-20.012(4)

provides:

Access. The family day care operator must

allow access to the entire premises of the

family day care home to inspect for

compliance with family day care home minimum

standards. Access to the family day care

home also includes access by the parent,

legal guardian, and/or custodian, to their

child(ren) while in care.

26. Section 402.310, Florida Statutes, addresses

discipline for failure to conform to licensing requirements and

states in pertinent part:

(1)(a) The department or local licensing

agency may administer any of the following

disciplinary sanctions for a violation of

any provision of ss. 402.301-402.319, or the

rules adopted thereunder:

1. Impose an administrative fine not to

exceed $100 per violation, per day.

However, if the violation could or does

cause death or serious harm, the department

or local licensing agency may impose an

administrative fine, not to exceed $500 per

violation per day in addition to or in lieu

of any other disciplinary action imposed

under this section.

2. Convert a license or registration to

probation status and require the licensee or

registrant to comply with the terms of

probation. A probation-status license or

registration may not be issued for a period

that exceeds 6 months and the probation-

status license or registration may not be

renewed. A probation-status license or

registration may be suspended or revoked if

periodic inspection by the department or

local licensing agency finds that the

probation-status licensee or registrant is

not in compliance with the terms of

probation or that the probation-status

licensee or registrant is not making

sufficient progress toward compliance with

ss. 402.301-402.319.

3. Deny, suspend, or revoke a license or

registration.

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided in paragraph (a), the

following factors shall be considered:

1. The severity of the violation,

including the probability that death or

serious harm to the health or safety of any

person will result or has resulted, the

severity of the actual or potential harm,

and the extent to which the provisions of

ss. 402.301-402.319 have been violated.

2. Actions taken by the licensee or

registrant to correct the violation or to

remedy complaints.

3. Any previous violations of the

licensee or registrant.

(c) The department shall adopt rules to:

1. Establish the grounds under which the

department may deny, suspend, or revoke a

license or registration or place a licensee

or registrant on probation status for

violations of ss. 402.301-402.319.

2. Establish a uniform system of

procedures to impose disciplinary sanctions

for violations of ss. 402.301-402.319. The

uniform system of procedures must provide

for the consistent application of

disciplinary actions across districts and a

progressively increasing level of penalties

from predisciplinary actions, such as

efforts to assist licensees or registrants

to correct the statutory or regulatory

violations, and to severe disciplinary

sanctions for actions that jeopardize the

health and safety of children, such as for

the deliberate misuse of medications. The

department shall implement this subparagraph

on January 1, 2007, and the implementation

is not contingent upon a specific

appropriation.

(d) The disciplinary sanctions set forth

in this section apply to licensed child care

facilities, licensed large family child care

homes, and licensed or registered family day

care homes.

27. Florida Administrative Code Rule 65C-20.012 identifies

the Department's treatment of Class I violations of its

licensing rules for child care facilities. The Rule states in

pertinent part:

(1) Definitions.

* * *

(d) "Violation" means a finding of

noncompliance by the department or local

licensing agency with a licensing standard.

1. "Class I Violation" is an incidence

of noncompliance with a Class I standard as

described on CF-FSP Form 5318 and CF-FSP

Form 5317. Class I violations are the most

serious in nature, pose an imminent threat

to a child including abuse or neglect and

which could or do result in death or serious

harm to the health, safety or well-being of

a child.

* * *

(3) Disciplinary Sanctions.

(a) Enforcement of disciplinary

sanctions shall be applied progressively for

each standard violation. In addition,

providers will be offered technical

assistance in conjunction with any

disciplinary sanction. The department shall

take into consideration the actions taken by

the facility to correct the violation when

determining the appropriate disciplinary

sanction.

(b) Each standard violation has an

assigned classification based on the nature

or severity of the violation(s) as

identified within CF-FSP Form 5318,

October 2007, Family Day Care Home Standards

Classification Summary, and CF-FSP Form

5317, October 2007, Large Family Child Care

Home Standards Classification Summary.

(c) A violation of a Class II standard

that results in death or serious harm to a

child shall escalate to a Class I violation.

(d) Disciplinary sanctions for licensing

violations that occur within a two (2) year

period shall be progressively enforced as

follows:

1. Class I Violations.

a. For the first and second Class I

violation, the department shall, upon

applying the factors in Section 402.310(1),

F.S., issue an administrative complaint

imposing a fine not less than $100 nor more

than $500 per day for each violation and may

impose other disciplinary sanctions in

addition to the fine.

b. For the third and subsequent Class I

violations, the department shall issue an

administrative complaint to suspend, deny or

revoke the license. The department, upon

applying the factors in Section 402.310(1),

F.S., may also levy a fine not less than

$100 nor more than $500 per day for each

violation in addition to any other

disciplinary sanction.

28. The Department has deemed that an unscreened

individual left alone to supervise children in care constitutes

a Class I level of violation. Likewise, failure of an operator

to allow the Department access to all parts of the home used as

a child care facility constitutes a Class I violation. See

CF-FSP Form 5318.

29. While it is true the two violations occurred, there

are very reasonable explanations which mitigate the seriousness

of the offenses. Handy believed the Department had given her

assurances that the upstairs would not be inspected. When an

inspection commenced, Handy felt as if the Department had

reneged on its promise, thus making Handy angry. Her

remonstrations were somewhat justified, even if her

understanding of the situation was in error.

30. Handy attempted to find an appropriate caregiver for

the minor child and felt justified that the child's parent had

acquiesced to let Handy's husband provide that care. Again,

even though Handy was wrong in her understanding of what was

allowed, her actions seemed just under the circumstances. Thus,

the violations warrant imposition of the minimum fine amounts,

rather than the maximum monetary fine.

31. Handy's refusal to acknowledge wrongdoing, even in

face of the evidence, is of some concern. She may be in need of

some remedial training as to the requirements for operating a

child care facility.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Children and Family Services imposing an administrative fine

of $200 against Respondent, Traceann Handy. It is further

RECOMMENDED that Handy be ordered to attend remedial

classes on the operation and management of a child care

facility.

DONE AND ENTERED this 13th day of January, 2010, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of January, 2010.

ENDNOTES

1/ All statutory references are to Florida Statutes (2008),

unless otherwise noted.

2/ Respondent's Proposed Recommended Order had nine exhibits

attached to it. Those exhibits, which were not accepted into

evidence during the final hearing in this matter, will not be

relied upon to make any finding of fact in this Recommended

Order.

3/ Handy stated at the final hearing that the facility was not

currently operating. However, there is no pending order or

directive from the Department requiring closure of the facility.

The decision to close the facility was apparently done for

personal financial reasons.

4/ The facility is licensed to operate 24 hours per day for six

days a week. The facility is closed on Sunday.

5/ Neither of the two issues for which the investigation was

initially begun was addressed in the Administrative Complaint.

No competent testimony was presented at final hearing as to

those issues.

COPIES FURNISHED :

George Sheldon, Secretary

Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

Tallahassee, Florida 32399-0700

John J. Copelan, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

Gregory Venz, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399-0700

Traceann Handy

Traceann Handy Family Daycare Home

4423 32nd Avenue Southwest

Naples, Florida 34116

Eugenie G. Rehak, Esquire

Department of Children and

Family Services

Post Office Box 60085

Fort Myers, Florida 33901

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.